Dear Friends of Florida’s waters:
As you may have read/heard there was a final Order on the Merits of the numeric nutrient criteria case from the federal district court in Tallahassee.  It isn’t the end of the matter but a major decision along the way.  There are a few things in the order that we can take encouragement from and a number of things that will not be helpful in protecting our waters from nutrients through the legal/regulatory system. I will try to share my thoughts after just reading the 86 page order in the most simple language possible.  In case you don’t make it to the end, I’ll start with what I see as the good news and then move to the disappointing aspects.  I’d love to get your feedback too.  The Order says that by May 21, 2012 the EPA Administrator must sign for publication of a proposed rule, or sign for publication a final rule that sets numeric nutrient criteria for Florida streams that are not in the South Florida region. And That by the same date, she must sign for publication  or sign a final rule that sets default downstream-protection criteria for unimpaired lakes unless she decides to drop that issue.
The good news:
The Court:
1.  agreed that numeric nutrient criteria are necessary;
2.  upheld the lake and spring criteria;
3.  Upheld EPA’s determination that Downstream Protection Values (DPVs) are needed;
4.  Upheld the DPVs for impaired lakes (but not unimpaired lakes);  however, if the lake is not impaired, then the DPVs are whatever the ambient conditions are at the point where a stream enters a lake.  So the DPVs do not offer any additional protection from upstream sources when the lake is not proven to be impaired.
5.  Canals are also subject to DPVs. This is very good news and could be helpful for estuary protection down the road.  We can expect DEP to down-grade many if not all canals to an unswimmable/barely fishable designated use which would allow for weaker criteria.  However, it also seems that canals leading to impaired waters would not be eligible.  HOWEVER, I HAVE HAD THIS DISCUSSION WITH DEP MANY TIMES AND THE STATE’S POSITION ON THIS IS THAT UPSTREAM WATERS THAT FLOW TO IMPAIRED WATER BODIES CAN STILL BE DOWNGRADED.  That issue will likely get further judicial review some day.
6.  Upheld EPA’s requirement that lakes meet chlorophyll-a, nitrogen and phosphorus criteria and not just the chlorophyll-a, which is what DEP and the polluters wanted.  However, the Order states that the DEP can weaken the Total Nitrogen and Total Phosphorus criterion for a lake if the lake’s annual geometric mean chlorophyll-a concentration was less than the baseline criterion for the preceding three years.  That could lead to problems down the road.  Again GRN and NRDC challenged this issue and we appreciate that effort even though the court didn’t see it their way.  The Court was sympathetic to the polluters and said that the flexibility would “blunt(s) the force of some of the state and industry parties’ complaints about the rule.”
What does that mean for protecting our waters?  While it is good that there will soon be enforceable numeric nutrient criteria for lakes and springs, the bad news is that the rule doesn’t apply to agricultural or municipal storm water pollution (non-point source) and there are no direct discharges with NPDES permits that discharge directly into  springs or lakes.  So I don’t see any changes to pollution loading for these waters in the short term.  The lakes that are impaired either have TMDLs or will get them and the TMDLs will become the new criteria (for better or worse) for those lakes and the streams that flow to them.  There is some encouraging language in the Order that says when stream criteria are adopted, there will still be a need for DPVs.  The Order clarifies that the DPVs are additional protection for the impaired lake which may not be adequately protected by stream criteria/TMDLs.  The Order is clear that even if the stream is meeting its criteria, that criteria may not be protective enough for the lake and the DPVs would be necessary.  THIS ALONE IS A MAJOR VICTORY FOR THIS CASE IN MY OPINION.
HERE IS MORE VERY ENCOURAGING LANGUAGE . . . “FOR DEFAULT DPVS FOR A LAKE THAT DOES NOT COMPLY WITH THE LAKE CRITERIA – AN IMPAIRED LAKE – THE ANSWER IS THAT A SMALL CONTRIBUTION TO AN IMPAIRMENT IS STILL A CONTRIBUTION.  SOMEONE ONCE SAID THAT A PERSON IN A HOLE SHOULD STOP DIGGING.  IT IS GOOD ADVICE, AND IT APPLIES AS WELL TO A LAKE WITH EXCESSIVE NUTRIENTS.  IT MAKES SENSE TO STOP PUTTING IN MORE WATER WITH EXCESSIVE NUTRIENTS.”  See below the downside of the DPV ruling.
The bad news:
1.  The Court upheld EPA’s procedures for adopting site-specific alternative criteria (SSACs).  Even worse, the Court seems to think that SSACs are a good thing and will make the criteria more palatable to polluters.  Well . . . Yes! This has been a major goal of Florida polluters for a long time.  The Order says the time to get into this issue will be when EPA grants a SSAC that is contrary to the goals of the CWA – which is the same advice that we have been given by our attorney.  I am glad it was included in the suit by Gulf Restoration Network and NRDC however.  In fact, I’m very appreciative of that effort.  The Court also seems to think that we could seek a SSAC that would strengthen the criteria.  That is unlikely to be successful since the EPA rule specifically says that in order to do this, someone would have to prove that the existing criteria is not protecting the designated uses of the water.  That is a tough test in Florida.
2.  The Court unfortunately ruled against GRN and NRDC on the issue of duration and frequency.  In my opinion this is the worst aspect of this rule and is what will undermine most efforts to use this rule to a positive end.  This is the part of the rule that you have heard me complain about endlessly .. . A water body will only be deemed impaired if the annual geometric mean of a nutrient parameter exceeds the limit at least two out of three years.  The Order states that, “Gulf Restoration Network parties argue with considerable force that this does not sufficiently protect at least one designated use . . .”  Again we appreciate the diligent effort on the part of GRN and NRDC.    The Order does say one encouraging thing on this subject:  “While the issue is not free of doubt, I resolve the question in the Administrator’s favor, giving substantial weight to the standard of review.”  Maybe there is still hope on this one.
3. The stream criteria was found to be arbitrary or capricious;  The Court did not like the use of reference streams as a way to judge impairment and I think that I agree with him on this one.  The bigger issue here though is the duration and frequency requirement and the fact that the criteria do not have to apply to discharges from NPDES permitted pipes at the point where they enter the water.  That is a travesty in this rule.  The Court said that the criteria could be used in an NPDES permit, but would not be required.
4.  GRN and NRDC argued for more protective criteria for the springs and lost on that issue.  While this is disappointing, I don’t see how this criteria can be enforced regardless of how stringent or relaxed it is.  It only applies to the spring “vent” and does not go into the ground water above or around the spring or downstream into the lake, stream or estuary.  So, . . .
5. The order assumes that nutrients can increase significantly in a water body and not necessarily cause a problem and if it is, then the order says that EPA did not explain how.  The judge chose to interpret Florida’s narrative nutrient criteria which says, “nutrient concentrations of a body of water must not be altered so as to cause an imbalance in natural populations of aquatic flora or fauna” to mean that the increase in nutrients can not cause harm to the water.  He admits that any increase in nutrients will cause a change in flora and fauna, but he thinks that the increase would have to be a harmful change.  This is what led to the rejection of the stream criteria and the DPVs for unimpaired lakes.
6. For default DPVs for an unimpaired lake, the Order reflects (in my opinion only) a lack of true understanding on the part of the Court.  The Order seems to say that if the lake is okay, then the waters coming into it must be fine . . . The Order refers back to the idea that the criteria can’t be designed to prevent any increase in nutrients, but only provide protection against a harmful increase.
There were other issues which I consider to be less important that I won’t comment on now.  There is likely to be a different perspective by others and I would love to hear/see them.  This is my first read of the rule and I may have more to say shortly.  Let me know if you have any questions.
Thank you to everyone who has signed our comment letters and offered assistance with this rule.  We still have many more water bodies to set criteria for, so stay tuned.
For all of Florida’s waters,
Linda Young
Director
Florida Clean Water Network

About the Author

Linda Young has been the executive director of the Clean Water Network of Florida since 1994. From 1989 to 1997, she founded and published a monthly statewide environmental newspaper. Over the past twenty three years, she has co-founded some of the most long-lasting and effective environmental organizations in the Southeast, including the Gulf Restoration Network, Gulf Coast Environmental Defense and C.A.T.E. She holds a B.A. in Communications from Southern Oregon University and a M.A. in Political Science/Campaign Management from the University of West Florida.



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